City of Decatur v. McKean

Decision Date25 October 1906
Docket Number20,839
Citation78 N.E. 982,167 Ind. 249
PartiesCity of Decatur v. McKean
CourtIndiana Supreme Court

From Superior Court of Allen County; Owen N. Heaton, Judge.

Action by George E. McKean against the City of Decatur. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.


Henry Colerick and L. J. Ninde, for appellant.

Shaffer Peterson, John C. Moran and Clark J. Lutz, for appellee.


Jordan, C. J.

Appellee commenced this action in the Adams Circuit Court to recover against the city of Decatur for services rendered as a special civil engineer. On change of venue the cause was tried in the Superior Court of Allen County.

The complaint is in three paragraphs. The first substantially alleges the following facts: On April 22, 1903, appellee contracted with the common council of the city of Decatur to serve in its employ as a special engineer. It was agreed between him and said city, through its common council, that he was to perform services for the city as a special engineer, for a period of one year, on all contract work let by the city, in addition to the work and services usually performed by a city civil engineer. It was further agreed that, as a compensation for his services for said year, he was to receive from and be paid by said city $ 40 per month, and in addition to this he was to receive, as a further compensation, one per cent on all work and contracts let by the city when the aggregate of such contracts and work exceeded $ 15,000; but if the contracts or work let by the city during said year of his employment did not exceed $ 15,000, he was to receive only $ 40 per month. It is shown that he entered into the employment of the city under this contract, and during the year for which he was employed he prepared and furnished for the use of the city all plans and specifications, and did all of its work of civil engineering; that the work let by said city during said year in the way of street improvements and upon which he performed the services of civil engineer was in the aggregate $ 57,959.53, from which, after deducting $ 15,000, there remained $ 42,959.53, upon which he was entitled under his contract to receive and be paid by the city one per cent on said sum, amounting to $ 429.59. This sum is now due and wholly unpaid to him. Wherefore he demands judgment, etc.

The second paragraph alleges the same facts as those averred in the first, but in addition thereto it is shown that on May 3, 1904, appellee made out an itemized bill and account for the amount due and owing to him by the city, which bill was fully verified by him before the clerk of appellant city, and was filed in the office of said official; that on May 17, 1904, this bill was presented to the common council of said city at its regular session, and said body, after considering the same, allowed said claim in favor of appellee, and thereupon the clerk of the city drew and signed an order or warrant for the amount of said claim so allowed, payable to appellee; that he receipted for said warrant and presented it to the mayor of said city for his signature; that the mayor, however, refused to sign it, and appellee then presented the warrant to the treasurer of appellant city, who refused to pay the same, for the reason that it had not been signed by the mayor; that said claim is still due and unpaid. Wherefore judgment is demanded for $ 500 and all proper relief.

The third paragraph is founded on what purports to be an order or warrant of the city of Decatur in favor of appellee for $ 429.59, which amount had been duly allowed by its common council on May 17, 1904, on account of services which appellee had rendered for the city as a special civil engineer. It is further alleged that the clerk of said city on May 18, 1904, issued to appellee a warrant or order for said sum so allowed by the common council. It is averred that a copy of said warrant, marked exhibit A, is filed with and made a part of the paragraph in question. It is further alleged that after appellee received said warrant he presented the same to the treasurer of the city and demanded payment thereof; that the treasurer refused to pay said warrant, and that said sum of $ 429.59, together with the interest thereon, is due and wholly unpaid. Wherefore judgment is demanded, etc. A copy of said order is as follows:

"No. 5,795. General Fund. $ 429.59.
Office of City Clerk,
Decatur, Indiana, May 18, 1904.
To the Treasurer of the city of Decatur:
Pay to George E. McKean or order $ 429.59. Date of allowance 5-17-1904. Services as City Civil Engineer.
Attest: D. M. Hower, City Clerk.
-----, Mayor."

Appellant demurred separately and severally to the first, second, and third paragraphs of the complaint on the ground that neither of said paragraphs states facts sufficient to constitute a cause of action against the defendant. The record recites that this demurrer was "overruled as to each paragraph of the complaint, to which ruling of the court the defendant excepted."

Appellant filed an answer in six paragraphs, to which no demurrer appears to have been filed, and no question is raised in respect thereto. Upon the issues joined there was a trial by the court and a general finding in favor of appellee to the effect that the general allegations of his complaint were true, and that he was entitled to recover the sum of $ 429.59. There was a motion for a new trial, assigning, among other reasons therefor, the statutory grounds. This motion, over appellant's exception, was denied, and a judgment in favor of appellee was rendered upon the finding.

The errors discussed and relied upon for a reversal of the cause relate to the overruling of the demurrer to each paragraph of the complaint and to the insufficiency of the evidence to support the finding of the trial court. Counsel for appellee, however, contend that the alleged errors arising out of the ruling on the demurrer to each paragraph of the complaint present no question for review, for the reason that the exception reserved by appellant is en gros. In support of this contention they cite Southern Ind. R. Co. v. Harrell (1904), 161 Ind. 689, 63 L. R. A. 460, 68 N.E. 262. It may be said, however, that this case, and also Noonan v. Bell (1902), 159 Ind. 329, 64 N.E. 909, on the point in question, were expressly disapproved in Whitesell v. Strickler (1907), post, 602.

It will be noted that the demurrer in the case at bar was addressed separately and severally to the first, second, and third paragraphs of the complaint, on the ground that not one stated facts sufficient, etc., which demurrer, as the record recites, was by the court overruled as to each paragraph of the complaint, to which ruling of the court the defendant excepts. Under the circumstances, the exception manifestly was reserved and applied separately to each of the paragraphs designated in the demurrer, and is therefore sufficient. Whitesell v. Strickler, supra.

Appellant's counsel assail the first paragraph of the complaint, first, on the ground that under the facts therein alleged it is shown that the employment of appellee by appellant's common council was an attempt on the part of said council to provide for the performance of the regular duties of a city civil engineer, contrary to the general provisions of § 3476 Burns 1901, Acts 1901, p. 114, which constitutes a part of the governing law under which appellant city was organized and is operating. This section provides that "the officers of such city shall consist of a mayor, * * * civil engineer," etc. The facts, however, as alleged in the first paragraph of the complaint, do not even tend to support counsels' first contention. If, as counsel seemingly insist, appellant, at the time it employed appellee to serve as a special engineer, had a regularly appointed and acting civil engineer appointed under this statute, then such facts, if available, should have been set up by way of answer, for it is evident that no facts tending to sustain counsels' contention are exhibited by the paragraph in question. In fact, it may be said that there is an entire absence in the complaint of anything going to show that the employment of appellee by the common council was an attempt upon the part of that body unlawfully to interfere with the duties conferred by law on appellant's civil engineer.

Appellant's counsel advance as a second proposition that the first paragraph is also bad because, by the facts therein averred, it affirmatively appears that the contract or agreement under which appellee was employed by the city was not in writing, and was not to be performed within one year from the making thereof, and, therefore, it is argued that the case falls within the fifth subdivision of § 6629 Burns 1901, § 4904 R. S. 1881, the same being a part of our statute of frauds. But counsel are mistaken in their contention that the facts alleged show that the contract by which appellee was employed to do the work in controversy was one which, under the agreement of the parties thereto, was not to be performed within one year after the making thereof. On the contrary, it is disclosed that appellee was employed to serve appellant for one year only. This provision of our statute of frauds has no application to contracts which may or may not be performed within one year. Piper v. Fosher (1890), 121 Ind. 407, 23 N.E. 269; Durham v. Hiatt (1891), 127 Ind. 514, 26 N.E. 401; Hinkle v. Fisher (1885), 104 Ind. 84, 3 N.E. 624. It manifestly follows that neither of the above objections urged by counsel to the first paragraph of the complaint is sustained.

It is further insisted, however, that this paragraph is also insufficient because, (1) it does not...

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